Thanks to Sheldon Larky, terrific family lawyer in Bingham Farms, Michigan for his contribution to our State Bar of Michigan Family Law Listserv this past week. What a lot of mentoring occurs on that listserv! In response to another lawyer's query, Shel wrote:
Pertinent to the appeal in the newly published Michigan case Eickelberg v Eickelberg, __ Mich App __ (2015): Under the 100 mile rule limitation in determining a child’s change of residence [MCL 722.31], the 100 mile rule means radial miles rather than road miles. Road miles refers to the distance between two points along the shortest route of public travel, while radial miles refers to the distance between two points as measured along a straight line. Bowers v Vandermeulen-Bowers, 278 Mich App 287; 750 NW2d 597 (2008), lv app den 481 Mich 908 (2008); Lash v Traverse City, 479 Mich 180, 183 n 1; 735 NW2d 628 (2007).
The “as the crow flies” rule is the majority rule. In the absence of any statutory or contractual provision governing the manner of measurement of distances, the general rule is that distance should be measured along the shortest straight line, on a horizontal plane and not along the course of a highway or along the usual traveled way. 79 Am Jur 2d Weights and Measures, § 46 (2012).
See also, State v Birch, 545 So 2d 279, 281 (CA 4, Flor, 1989); State ex rel Fronton Exhibition Co v Stein, 198 So 2d 82, 85 (Fla, 1940); Commonwealth v Spano, 605 NE2d 1241, 1245 (Mass, 1993); Palazzo ex rel Delmage v Corio, 204 FRD 639 (ED NY, 1998); Harris v University Hospitals of Cleveland, Nos. 76724, 76785 (Ct App Ohio, 2002); Tucker v Liebknecht, No. 5D11-681 (Ct App 5 Fla, May 4, 2012) slip op 5 (“We conclude that consistent with the general rule, in the absence of a statutory or contractual provision to the contrary, the simplest and most objective method to measure the distance between two points is the straight-line or ‘as the crow flies’ measure.”)
See last week's post on this blog for more information and materials about the 100 Mile Rule.
